Baroness Williams of Crosby: My Lords, at this late hour I believe that the House has already heard almost enough from me, so I shall make my remarks brief. The noble Lord, Lord McIntosh, is attempting to deal with a difficult conflict for employers which arises from the fact that there are now two pieces of legislation, both of which they are supposed to obey. The first, if it receives the approval of the House, will be encompassed in Clause 8. It will require them to satisfy the requirements of the Bill in respect of the employment of illegal immigrants.

There are already on the statute book requirements with regard to the Race Relations Act, and employers are supposed to abide by them. If my noble friend Lord Thurso is right, it will be difficult for employers to walk between the small, tricky space dividing the two pieces of legislation. They are required to obey both.

The amendment would go a long way towards enabling employers to accept and obey both pieces of legislation, because it will allow employers to assure themselves that their actions were not seen to be in contradiction to the existing race relations legislation. I support the amendment, because it will go some way towards assisting employers to say that they were acting in terms that meant that they were in fact upholding both pieces of legislation which might in some way be seen to be in conflict with each other.

Lord Renton: My Lords, Amendment No. 73 and the amendments which go with it, refer to orders which are subject to parliamentary control. When we have orders of that kind, it is unusual that we should lay down that the Secretary of State shall not break the law when making the order: in effect, that is what the amendments do. It is a little unfair--indeed, rather rude--to suggest that any Secretary of State, whatever his party, would engage in racial discrimination when making an order.

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It would be against the law to do so and it is most ungenerous of the noble Lord to suggest that such an expression needs to be made when Parliament is giving power to a Secretary of State to make an order.

As regards consulting organisations appearing to the Secretary of State to be representative, we know--in particular those who have had experience in government--that there is a great deal of consultation with the organisations involved. They may be other governmental organisations, charities or voluntary bodies. A great deal of thorough discussion takes place between officials of departments and the other organisations whose members may be affected. I should have thought that it was unnecessary to write that into the Bill. I hope that my noble friend will feel free to advise your Lordships not to accept the amendment or those grouped with it.

Earl Russell: My Lords, I believe that the noble Lord, Lord Renton, understands perfectly well, without any respect of party, that Parliament, as a body, should always distrust any Secretary of State of any political colour whatever. The amendment means no more than that. I am also sure the noble Lord can remember many occasions in this Chamber when a great deal of our time has been taken up because a Secretary of State failed to consult. It does happen.

9.30 p.m.

Baroness Blatch: My Lords, as regards this subject it certainly does not happen. The consultation is very full. The Government are committed to maintaining and developing good race relations in this country and to ensuring that all groups are treated equally. Only last week the Council for Racial Equality confirmed the good record of race relations in this country. We are alive to the continuing need for vigilance in ensuring that all legislation does not damage those good relations.

We appreciate that some people are concerned that Clause 8 might operate to the disadvantage of people from the ethnic minorities. But we believe that those concerns are misplaced. If we thought that employers would pick out any particular group for discriminatory treatment on the basis of their colour or race because of this clause or any orders made under it we would be extremely concerned. We have therefore given very careful consideration to this point from the outset. We do not share the fears which have been expressed. We believe that our proposals will not adversely affect the position of people from the ethnic minorities.

There are two order-making powers under Clause 8 which Amendment No. 73 would affect. One will allow the Secretary of State to specify that persons subject to immigration control satisfying conditions other than those outlined in the clause itself can be employed without any offence being committed. The other will allow the Secretary of State to specify categories of document on which an employer will be able to rely for his defence and specify the way in which an appropriate record should be made to establish a defence.

The exercise of neither of these order-making powers will result in unlawful discrimination. Indeed, there would be no question of orders being made by my right

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honourable friend if that were the result. The amendments would also require my right honourable friend to consult organisations representative of persons concerned and other relevant organisations before making any order under Clause 8.

The Government are committed to proper consultation with employers and others to ensure that the implementation of Clause 8 is as straightforward as possible. But we have made clear that we do not agree that there should be any statutory requirement to undertake such consultation every time the order-making powers are to be used. In our view, such a requirement is unnecessary. Indeed, there could well be occasions where such consultation would achieve nothing except an unhelpful delay.

Consultation will take place where it will be helpful. In particular there will be consultation on the guidance that the Home Office will be providing for employers. If those consulted have any comments on points arising from draft statutory instruments then available we will of course consider amending them. But given the purpose and likely content of the statutory instruments we do not anticipate that such comments are likely.

The key requirement, as we have said all along, will be to keep employers and others informed about Government policy in this area--and to give employers time to prepare for any changes.

In preparing an order under Clause 9, the Department of the Environment, would, as a matter of course, take into consideration the concerns of key players, such as the local authorities associations and the Council for Racial Equality, as well as having regard to legislative requirements such as those in the Race Relations Act 1976.

As your Lordships are aware, there are already restrictions in place on access to the homelessness legislation by certain persons from abroad. The Homelessness Code of Guidance for Local Authorities suggests a screening procedure which is applicable to everyone applying for assistance under the homelessness legislation. The screening procedure and related advice in the guidance was drawn up by the Department of the Environment in consultation with, among others, the Commission for Racial Equality. This procedure has been in place for two years and given rise to no complaints. It is the type of procedure which the Department of the Environment proposes to commend to local authorities in applying the new legislation. The department will also be preparing new guidance to take account of the provisions in the Housing Bill, now being considered in the House, and will, as a matter of course, take account of the concerns of interested parties.

Our administrative procedures for dealing with child benefit applications will establish people's nationality and filter down to people who have spent time abroad in the last few years. Only these people will be asked further questions about their immigration status. This avoids any need for enquiry into an applicant's immigration status based solely on potentially misleading factors such as his ethnic origin or style of his name. This is the same procedure as that applied in

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the case of other non-contributory benefits and, although the provisions there have been in operation only a short time, they have not given rise to any complaints.

It also needs to be said, in the context of all those points, that there are also laws about paying tax for employees and deducting employees' National Insurance contributions. Without National Insurance numbers or some sort of identification, how can the employer communicate with the Contributions Agency of the Inland Revenue? Those are standard documents required by any employer who is legally employing people in this country. We do not believe that that would constitute an added burden. I hope that that reassures the noble Lord and the noble Baroness who spoke to the amendment.

Lord McIntosh of Haringey: My Lords, in order that I do not forget to do so, perhaps I may refer first to the remarks made by the noble Lord, Lord Renton, who described me or the amendment as being ungenerous in raising the possibility that the Secretary of State might engage in racial discrimination. I said no such thing and the amendment says no such thing. The amendment provides that the Secretary of State should be satisfied that no racial discrimination will result; in other words, that employers should not engage in racial discrimination. There is no question of a suggestion either in what I said or in what the amendment says of the Secretary of State engaging in racial discrimination. However, I must say that I am by no means certain that there might not be a Secretary of State who would engage in racial discrimination, however ungenerous it may be to say so.

The thrust of the amendment is a rather different and more important point than that raised by the noble Lord, Lord Renton. The thrust of the amendment concerns the possibility of conflict between the requirements of Clause 8 and the obligations on employers to support and practise equal opportunities. What we have been saying and what everybody with any practical experience of employment is saying is that the effect of Clause 8 will be that less scrupulous and less careful employers will take the easy short cut to the implementation of Clause 8 and will not employ anybody who is of a different coloured skin or with a different accent.

Nothing that I have heard said by the Government or indeed by noble Lords opposite has persuaded me that that is not highly likely. All the arguments against it have been theoretical rather than practical. All of the practical experience that we have heard about this evening has come from noble Lords on this side of the House who have argued, I believe convincingly, that the danger still exists.

In her closing remarks the Minister said that the Government consult widely with many different organisations concerned with racial discrimination. I do not doubt that the noble Baroness consults; all I can say that she cannot have been listening to what those organisations were saying. They have been saying something very different and very much less supportive of the Government than would appear to be the case from the Minister's comments.

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We did not divide in Committee and the issue is not one upon which I wish to divide the House at this time of night. However, it remains a very serious concern for the Opposition. We are by no means convinced with the answers that have been given. Nevertheless, I beg leave to withdraw the amendment.